Administrative Law
Justice Breyer's Democratic Pragmatism
115 Yale L.J. 1719 (2006) As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" to regulatory tools; he urged that an understanding of the particular problem that justified regulation would help in the selection of the right tool. One of Breyer's major innovations lay in an insistence on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world. Hence Breyer argued for a close connection between administrative law and regulatory policy. Continuing his pragmatic orientation, he also emphasized the importance of better priority-setting in regulation--of finding mechanisms to ensure that resources are devoted to large problems rather than small ones. While some of Breyer's work touched on the separation of powers, constitutional law was not his field. But as a member of the Supreme Court, Breyer has slowly been developing a distinctive approach of his own, one that also has a pragmatic dimension, and that can be seen as directly responsive to his colleague, Justice Antonin Scalia, and to Scalia's embrace of "originalism": the view that the Constitution should be interpreted to mean what it originally meant.
Recovering American Administrative Law: Federalist Foundations, 1787-1801
115 Yale L.J. 1256 (2006) By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.
Regulation by Software
114 Yale L.J. 1719 (2005) This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem.
The Sarbanes-Oxley Act and the Making of Quack Corporate Governance
114 Yale L.J. 1521 (2005) This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical literature provides a metric for evaluating whether specific provisions can be most accurately characterized as efficacious reforms or as quack corporate governance. The learning of the literature, much of which was available when Congress was debating the bill, is that SOX's corporate governance provisions were ill conceived. The political environment explains why Congress would enact legislation with such mismatched means and ends. SOX was enacted as emergency legislation amid a free-falling stock market and media frenzy over corporate scandals shortly before midterm congressional elections. The governance provisions, introduced toward the end of the legislative process in the Senate, were not a focus of any considered attention. Their inclusion stemmed from the interaction between election-year politics and the Senate Banking Committee chairman's response to the suggestions of policy entrepreneurs. The scholarly literature at odds with those individuals' recommendations was not brought to Congress's attention (and was ignored on the rare occasions that it was referenced). The pattern of congressional decisionmaking in SOX is not, however, unique. Much of the expansion of federal regulation of financial markets has occurred after significant market turmoil. The Article concludes that SOX's corporate governance provisions should be stripped of their mandatory force and rendered optional. To mitigate future policy blunders on the scale of SOX, it also suggests that emergency or crisis-mode legislation provide for reevaluation at a later date when more deliberative reflection is possible.
Property in All the Wrong Places?
114 Yale L.J. 991 (2005) In Who Owns Native Culture? and Public Lands and Political Meaning, an anthropologist and a historian document an ever-increasing deployment of property categories in two quite different domains: native people's recent cultural claims in the first book and the longer story of the United States's public rangelands in the second. Both authors take a jaundiced view of this growth in propertization, arguing that in their respective subjects, property rhetoric paralyzes fluid and negotiated problem solving while undermining respectful relationships among parties. This Review suggests, however, that both authors may be underestimating the ability of property institutions to morph into new and useful forms--forms that can aid wide-ranging negotiations and enhance respect and understanding among the participating persons and groups.
Punishing Masculinity in Gay Asylum Claims
114 Yale L.J. 913 (2005) Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared too stereotypically heterosexual. The decision is representative of a trend in immigration law to equate visibility with the potential for antihomosexual persecution. This Comment argues that visibility should be irrelevant in sexual-orientation-based asylum cases. As I discuss in Part I, cases such as Soto Vega punish homosexuals who "cover" their sexual identity and reward those who "reverse cover," or act more visibly "gay." This system of incentives is inconsistent with the purpose and structure of asylum law for at least two reasons. First, as I argue in Part II, covering one's sexual orientation is a natural response to homophobic persecution. Thus, the visibility requirement punishes asylum applicants for exhibiting a symptom of persecution and is therefore inconsistent with the fear-based standard of asylum. Second, the visibility requirement assumes that conspicuous homosexuals have fundamentally different identities than inconspicuous homosexuals, such that they constitute a different social group for asylum purposes. This belief is grounded in a performance-as-identity model--suggesting that identity is determined by behavior rather than by immutable characteristics. As I argue in Part III, however, asylum law protects homosexuals on the basis of their immutable sexual orientation and thus precludes the performance-as-identity model.
The Defined Contribution Paradigm
114 Yale L.J. 451 (2004) Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. This Article suggests that over the last generation something more fundamental, which can justly be called a paradigm shift, has occurred. Americans today primarily conceive of and implement retirement savings in the form of individual accounts. Such accounts have become primary instruments of public policy, not just for retirement savings, but increasingly for health care and education as well. This Article contends that the defined contribution society as it has emerged today constitutes a fundamental transformation of the way Americans think about and implement tax and social policy. The defined contribution paradigm began to emerge with ERISA's creation of the IRA and evolved further with the creation and popularization of 401(k) accounts. During the 1990s, policymakers adapted defined contribution accounts to cover savings for health care and education. To varying extents, Americans today can undertake the bulk of their most significant savings--for retirement, health care, and education--in defined-contribution-style accounts. Today, the policies likely to be adopted are those that channel government subsidies through individual accounts controlled by the taxpayer herself. In contrast, defined benefit arrangements--as exemplified by the traditional pension plan and the federal Social Security system--are less likely to be proposed, adopted, or expanded. The defined contribution paradigm has major tax policy implications as well. As a result of the increasing prevalence of defined contribution programs, upper-middle-class taxpayers can undertake most of their significant financial savings through these tax-favored accounts. If Congress ever formally transformed the Internal Revenue Code into a federal consumption tax, the defined contribution paradigm would have paved the way by acclimating the public to a system in which savings may be undertaken on a tax-free or tax-advantaged basis.
An Article I, Section 7 Perspective on Administrative Law Remedies
114 Yale L.J. 359 (2004) By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Article I, Section 7 can inform remedial choice in administrative law--the choice between vacating defective agency action and remanding it without vacatur. It argues that, from the perspective of the sequential structure of Article I, Section 7, vacatur should be the presumptive administrative law remedy. Accordingly, the Note offers a reason to question the recent judicial trend away from the vacatur remedy.
Compatibility and Interconnection Pricing in the Airline Industry: A Proposal for Reform
114 Yale L.J. 405 (2004) Where rival firms compete in a network industry, compatibility among all firms maximizes the size, density, and total value of the network by combining rivals into a single network. Applying network-compatibility theory to the airline industry suggests that major carriers have an incentive to thwart interairline compatibility, which they accomplish by making it prohibitively costly for travelers to combine complementary flights on different airlines into a single itinerary. This Note suggests a regulatory regime that would achieve compatibility among airlines, thereby maximizing the value of the air transportation network and enhancing competition in the market for connecting passengers.
Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production
114 Yale L.J. 273 (2004) This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lumpy" and "mid-grained" in size, and explains why goods with these characteristics will have systematic overcapacity relative to the requirements of their owners. The Essay next uses comparative transaction costs analysis, focused on information characteristics in particular, combined with an analysis of diversity of motivations, to suggest when social sharing will be better than secondary markets at reallocating this overcapacity to nonowners who require the functionality. The Essay concludes with broader observations about the attractiveness of sharing as a modality of economic production as compared to markets and to hierarchies such as firms and government. These observations include a particular emphasis on sharing practices among individuals who are strangers or weakly related; sharing's relationship to technological change; and some implications for contemporary policy choices regarding wireless regulation, intellectual property, and communications network design.
Is the Right To Organize Unconstitutional?
113 Yale L.J. 1999 (2004) Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004). Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act (NLRA); nonemployee union organizers have virtually none. Until a recent decision by the D.C. Circuit, however, there was little reason to believe that federal law, much less the Constitution, prevented states from granting workplace access rights to nonemployee organizers. While the issue had not been squarely addressed, it seemed safe to assume that state right-to-organize laws were the type of economic regulation subject to highly deferential constitutional review since the end of the Lochner era.
Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance
113 Yale L.J. 1283 (2004) Incentive-based regulations are generally more efficient than command-and-control measures. One of the primary categories of incentive-based regulations--and one that has gained significant support of economics scholars over the past few decades--is corrective taxation. Corrective taxes, under various guises, are used in numerous areas of the law: "Sin taxes" are the method of choice for regulating goods such as cigarettes and alcohol, pollution taxes are familiar tools of environmental law, and liability rules play a central role in tort law. Nevertheless, the potential of corrective taxes has been overlooked in the debates over campaign finance reform. The equivalent of command-and-control measures in campaign finance law are contribution ceilings, which lie at the heart of the American approach to regulating campaign finance. Current law places a $2000 ceiling on donations from individuals to political candidates. This limit is supplemented by a $5000 ceiling on donations from individuals to political action committees, a $25,000 ceiling on donations from individuals to national party committees, and an assortment of additional ceilings on numerous other forms of political donations. Contribution ceilings have become an enduring component of our system of campaign finance regulation. There are critics of this reliance on contribution ceilings. Some argue that caps on campaign contributions violate First Amendment rights, help incumbents against challengers, and lead donors to divert their contributions through regulatory loopholes. The (mostly conservative) adherents of this position favor allowing donors to contribute unlimited sums to political campaigns. Meanwhile, others argue that permitting even moderately sized donations is incompatible with true political equality. The (mostly liberal) adherents of this position would replace private donations with government-financed campaigns or a regulated system of public debates. This Note is not directed at either of these positions. Instead, I begin with the premise that political donations are neither categorically harmful nor categorically benign. I accept the underlying purpose of contribution ceilings: to limit the size of political donations without completely banning them. In order to achieve such an end, this Note applies the logic of corrective taxes to the problem of campaign finance. Specifically, I argue for replacing contribution ceilings with "contribution taxes." Rather than capping the size of political donations at a specified dollar level, I propose taxing donations based on a schedule of graduated rates--the larger the size of a contribution, the higher the rate of taxation. The argument proceeds on a highly theoretical level; questions about design variables are largely outside the scope of this Note. Instead, I present an economic argument for why contribution taxes are superior to contribution ceilings. My argument stems from a single observation: As compared to contribution ceilings, contribution taxes affirmatively select for donors with a greater willingness to pay taxes on their donations. To demonstrate this point, imagine that donors were required to obtain government permits before contributing any given amount to a candidate. Under this hypothetical, a contribution ceiling would grant every donor a permit to contribute up to the amount of the ceiling. In contrast, contribution taxes would distribute permits based on a donor's willingness to pay the tax. Donors with greater willingness to pay taxes would receive permits allowing them to donate larger amounts, while donors who were unwilling to pay the taxes would be allowed to donate only small amounts. Instead of capping all donors at the same level, contribution taxes allow donors to contribute up to the maximum amount at which they are still willing to pay the associated tax. There are two advantages to allowing donors with greater willingness to pay taxes to contribute larger amounts. First, in a sense, these donors derive greater value from contributing. According to microeconomic theory, the value someone receives from purchasing a good or service can be measured by the amount the person would be willing to pay for the good or service. The difference between the amount a consumer would be willing to pay for a good and the cost of producing the good equals the economic surplus created by the transaction. In the case of campaign donations, a donor's economic surplus equals the maximum level of contribution taxes the donor would be willing to pay for the privilege of making a donation. As compared to contribution ceilings, contribution taxes create more total surplus by affirmatively selecting for donors with greater willingness to pay taxes--donors who derive greater surplus from contributing. The second advantage comes from the possibility of donors diverting their contributions through "regulatory loopholes" when prevented from contributing directly. The regulatory system has proven unable to block all of the ways in which donors can spend money on behalf of a candidate. When prevented from contributing directly, some donors divert their funds into independent expenditures or other methods of indirectly aiding their favored candidates. Diversions of this sort are an endemic problem of campaign finance regulation. Still, not all donors will divert their funds when prevented from contributing directly. Ideally, a system of campaign finance regulation would only block donations to the extent they can be limited without causing donors to divert their funds. Contribution taxes come much closer to this goal than contribution ceilings. Contribution ceilings prevent all donors from contributing more than a fixed amount, regardless of the likelihood that donors will divert their funds in response. In contrast, contribution taxes only block donors who are unwilling to pay the tax. All else being equal, we can expect a strong correlation between donors who are willing to pay large taxes and donors who are likely to divert their funds. Hence, when the two policies are set based on the same goals, contribution taxes should cause less diversion than contribution ceilings. My argument proceeds on two levels. Part I models the advantages of contribution taxes in greater detail. As compared to contribution ceilings, contribution taxes generate more total surplus and less overall diversion. The Introduction has already explained the basic intuitions behind these two advantages. Part I demonstrates that these intuitions are robust in the face of more rigorous economic analysis. Part II relaxes some of my assumptions to argue that contribution taxes remain superior to contribution ceilings in the real world. Hence, Part II discusses questions that my model assumes away: Would contribution taxes exacerbate the problems of corruption or inequality? Are contribution taxes constitutional? Can we actually quantify the harms caused by donations? This Part does not attempt to fully resolve these questions nor to respond to all possible objections, but merely aims to show that contribution taxes do not generate any disadvantages serious enough to overpower the two advantages demonstrated by Part I.
The Integration of Tax and Spending Programs
113 Yale L.J. 955 (2004) This Article provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expenditures theory, both of which rely on tax policy to make the determination. This Article argues instead that the decision should be based solely on considerations of organizational design. Activities should be grouped together in a way that achieves the best performance, much like how a corporation decides to divide its business into divisions. Tax policy is entirely irrelevant to the decision. This Article begins the process of applying organizational design theory to the integration problem, considering theories of hierarchies based on the needs for specialization in and coordination of activities. It then analyzes whether food stamps and the Earned Income Tax Credit should be implemented through the tax system based on this analysis.
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
113 Yale L.J. 939 (2004) Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held that there was no private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. It is unclear, however, whether that decision precluded private rights of action to enforce other regulations promulgated under Title VI and comparable civil rights statutes. Even more significantly, Sandoval left unclear whether, and to what extent, federal agencies can shape private rights of action. While Sandoval's broad language implied that agencies can play only a limited role in creating private rights of action, its holding still allows substantial room for agencies to define those rights. Indeed, a recent split between the Fourth and the Eleventh Circuits illustrates that Sandoval does not necessarily preclude agencies from playing such a role. Although the Eleventh Circuit, in Jackson v. Birmingham Board of Education, held that there was no private right of action to enforce anti-retaliation regulations promulgated under Title IX of the Education Amendments of 1972, the Fourth Circuit, in Peters v. Jenney, held that a private individual can sue under Title VI of the Civil Rights Act of 1964 to enforce the anti-retaliation regulations promulgated under that statute. The critical distinction between the two courts' analyses was the significance each attached to the requirement of deference to agency regulations established by Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. This Comment argues that the Fourth Circuit was correct to incorporate Chevron into its analysis, and that its decision suggests a role for agencies in creating implied private rights of action that is much greater than the one articulated in Sandoval. While Sandoval may prevent agencies from creating private rights of action by themselves, they can achieve much the same effect by expansively interpreting the statutory rights of action created by Congress. With careful regulatory and statutory drafting, agencies and Congress can--and should--capitalize on the Chevron deference shown by the Fourth Circuit in Peters v. Jenney.
Insider Abstention
113 Yale L.J. 455 (2003) Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while in possession of nonpublic information cannot outperform public shareholders, even if they can use such information to abstain from trading. In fact, insiders unable to trade or abstain while in possession of nonpublic information would systematically earn lower trading profits than public shareholders. The Essay has also offered a preliminary analysis of the effects of insider abstention on managers' incentives. It explained why insider abstention is unlikely to create the same types of potential distortions as insider trading. Indeed, insider abstention tends to align managers' interests with those of shareholders, and is therefore likely to improve managers' incentives. This Essay's analysis has important implications for current issues in insider trading regulation. First, the analysis contributes to the "possession versus use" debate by demonstrating that the "possession" standard for Rule 10b-5 liability achieves greater parity between insiders and outsiders than does the "use" standard. Second, the SEC's safe harbor permitting insiders to buy or sell shares pursuant to prearranged trading plans while in possession of material nonpublic information and to cancel the plans while aware of material nonpublic information enables insiders to profit from their access to such information. The SEC could easily eliminate insiders' advantages over public shareholders by not allowing insiders to cancel their plans after becoming aware of material nonpublic information. More fundamentally, the analysis calls for reconsideration of established positions in the larger debate over insider trading. This Essay has shown that the failure of Rule 10b-5 to prevent insiders from using nonpublic information to abstain from trading should be seen neither as an undesirable "loophole" that needs to be closed nor as an embarrassing gap that proves the futility of insider trading regulation. I hope this work removes the shadow cast by insider abstention over the insider trading debate and helps refocus attention on the most important policy issue: the optimal regulation of insider trading.
Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance
113 Yale L.J. 179 (2003) In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intelligence Surveillance Act (FISA) of 1978, the FISC grants government agents permission to surveil targets if there is probable cause to believe they are foreign powers or agents of foreign powers. The FISC is accustomed to approving each government request it receives, but on May 17, 2002, it issued an order stating that the Department of Justice (DOJ) had overstepped its bounds by promulgating surveillance procedures that gave prosecutors too much supervisory authority over intelligence investigations. The DOJ insisted that its procedures were in accordance with the FISA amendments passed with the USA PATRIOT Act, and filed the first ever appeal to the Foreign Intelligence Surveillance Court of Review, a panel of three senior federal circuit court judges appointed by Chief Justice Rehnquist. The court handed down In re Sealed Case, reversing the FISC order and affirming the legitimacy of the new DOJ procedures and the USA PATRIOT Act amendments. In late March 2003, the Supreme Court declined to reconsider the decision. The USA PATRIOT Act has virtually eliminated the specialized intelligence-gathering function of FISA orders; they now can be used with the specific purpose of obtaining evidence to be used in criminal prosecutions, as long as this is not the sole purpose of such investigations. Additionally, prosecutors and intelligence officials may now consult over FISA warrant application and execution. A FISA warrant has become little more than a regular Title III warrant issued secretly with no required showing of probable cause of criminal activity. In view of these significant changes, the FISC retains little unique jurisdiction. The FISC's secret, perfunctory procedures no longer provide constitutionally adequate protection for surveillance targets who will be unknowingly investigated and prosecuted as a direct result of its orders, especially now that FISA surveillance may be used specifically for criminal--and not simply intelligence-gathering--investigations. The best way to revive the constitutional viability of foreign intelligence surveillance is to forego the FISA warrant procedure entirely and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged. Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigatory warrants would be required, but would also allow for greater protection of the civil liberties of those investigated, since the standard of review would not be simply whether the target is an agent of a foreign power, but whether the search was conducted in a reasonable manner, in conformance with the Supreme Court's Fourth Amendment jurisprudence. Warrantless foreign intelligence surveillance would be admissible in criminal prosecutions, but only if such surveillance were determined to be reasonable in post hoc adversary proceedings. My proposal is not to give the DOJ a blank check to investigate anyone, anytime, anywhere; such a regime would cause the kind of backlash that prompted the passage of FISA in the first place. Rather, if warrantless foreign intelligence surveillance is going to succeed in the twenty-first century, strict executive and legislative branch internal review procedures are necessary. Prosecutors will have to give targets of warrantless operations notice when such investigations are concluded, allowing targets to contest the surveillance in Article III courts. Such a change would benefit all parties involved. The DOJ would enjoy greater freedom in conducting investigations, as it would not have to procure judicial warrants and could act rapidly to investigate time-sensitive threats. At the same time, the entire process would be removed from the supersecret domain of the FISC, making the Attorney General publicly and politically accountable for his orders, allowing targets more opportunities to challenge investigations, and requiring Article III courts to closely examine the constitutionality of warrantless surveillance when targets so desire. In this Note, I first briefly discuss the reasons for the passage of FISA and the establishment of the FISC, including the past and current workings of the FISC as an institution and its questionable constitutionality even before the USA PATRIOT Act amendments. I then explain how the USA PATRIOT Act and In re Sealed Case have damaged the usefulness and legitimacy of FISA and the FISC. Finally, I make the case for the abolition of FISA and the appropriateness of warrantless searches as the standard in foreign intelligence cases.
A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections
112 Yale L.J. 2415 (2003) The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As the Supreme Court wrote in the canonical case of New York Times Co. v. Sullivan, the First Amendment's function is to create the "uninhibited, robust and wide-open" public debate necessary for the exercise of self-governance. The Amendment plays a prominent role in the regulation of workplace representation elections, the process by which unorganized workers decide whether or not to unionize. Since the 1940s, and particularly since the passage of the Taft-Hartley Act in 1947, Congress and the courts have used the First Amendment to protect the right of employers to campaign against unionization. Holding that employers may say nearly anything in order to persuade their employees to vote "no" in a union election, the Supreme Court has permitted the National Labor Relations Board to proscribe employer speech only when it contains threats of reprisal or coercive promises. In so ruling, the Court has sought to balance employers' right of free speech, as well as their common-law property and managerial rights, with workers' right to unionize. Yet whether deeming speech to be prohibited or protected, the Court has framed the issue with the First Amendment weighing only on the side of employers. For the most part, existing academic work on union elections has implicitly accepted this approach, viewing employers' rights of speech, property, and management as clashing with workers' statutory right to organize, without invoking any countervailing First Amendment right on behalf of workers. This Note challenges the Court's approach to the First Amendment for failing both to recognize and to protect the very real speech interests of workers and union organizers at stake in workplace representation elections. Building on the work of "democratic" free speech scholars, such as Alexander Meiklejohn, Owen Fiss, and Cass Sunstein, and applying their theories to a new arena, this Note argues that the Court's exclusive focus on safeguarding employer speech from state incursion leaves society vulnerable to powerful forces of private censorship. Specifically, the regime governing workplace elections allows employers to suppress worker speech and union messages, even as employers' own speech is protected. In so doing, the current law inhibits robust debate and collective self-governance both within the workplace and in society at large, and thereby contravenes the fundamental purpose of the First Amendment. This Note identifies two distinct, but related, ways in which current doctrine governing workplace elections restricts the freedom of speech. First, it constrains the ability of workers to speak freely and limits the existence of robust debate inside the workplace. The law grants employers extensive rights to campaign against unionization, including the power to compel workers to listen, to suppress their responses, and to exclude the messages of union organizers from the workplace. At the same time, the law fails to protect effectively worker speech. In fact, over the past half-century, reprisals suffered by workers who engage in pro-union speech have increased dramatically to well over 10,000 documented cases per year. Second, the suppression of worker speech and the exclusion of pro-union messages within the workplace hinders employees' exercise of free speech and the existence of robust debate outside of the workplace as well. When Americans spend much of their time without rights of expression and collective self-governance, they lose some ability to participate as active citizens in our society's democratic project. Furthermore, because the suppression of worker speech and pro-union messages enables employers to thwart the formation of unions, the ability of individual worker-citizens to engage effectively in public debate through their own collective organizations is impeded. For these reasons, the First Amendment permits, and indeed requires, us to revise the flawed regime governing workplace representation elections, even if doing so entails some further limits on employer speech. Toward that end, this Note will propose a new framework that protects worker speech and union messages, a framework more faithful to the First Amendment's purpose of safeguarding democracy. Part I of this Note examines the historical development of the "false paradigm," which views employers' First Amendment rights as in tension with statutory collective bargaining rights. It shows that, in the face of concerted pressure from employer groups, the Court, the Board, and Congress increasingly recast property and managerial rights in First Amendment terms while failing to consider the Amendment's democratic purposes. Narrowly focused on protecting individual autonomy from incursion by the state, the Court granted extensive First Amendment protection to employers but neglected the speech interests of workers and union organizers. Part II argues for a revised paradigm: Speech vs. Speech. This Part discusses how employer speech silences workers, and demonstrates that the current doctrine governing union elections fails to provide effective remedies for employer retaliation against pro-union speech, limits the right of workers not to hear employer speech, and constrains the ability of pro-union workers and union organizers to communicate their messages. Part III looks at the purposes of the First Amendment and argues that the jurisprudence on union elections fails to fulfill those purposes, both inside and outside the workplace. Part IV considers what a regime that protects worker and union free speech interests and furthers the democratic aims of the First Amendment might look like. It argues that new regulations on employer speech, as well as regulations to enable worker and union speech, are not only vital public policy, but are both permitted and required by the First Amendment.
Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act
112 Yale L.J. 2553 (2003) I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have not, as the original framers of the Act hoped, died after a "natural life" of thirty or forty years. Instead, the Act's "old-new" division in pollution-control technology requirements has, perversely, conferred unforeseen economic advantages and extended the lives of these outdated plants. Although the New Source Review and Prevention of Significant Deterioration programs have had minor success in narrowing the old-new divide, the majority of old sources remain untouched by the dictates of increasingly stringent control technology requirements imposed upon their new source counterparts. Today, the threat of an expanding old-new divide looms even larger. A broadening of the interpretation of "routine modification" proposed by the Bush Administration EPA would serve to further cement the grandfathered status of old electric utilities. Proponents of the rules change contend that owners of these utilities face a Hobson's choice, deterring them from modernizing their plants and making efficient changes for fear of triggering NSR/PSD pollution-control technology requirements. Indeed, the incentives for making efficient changes to grandfathered sources are perverse. It is a perversity that has evolved from trying to achieve un-grandfathering through the back door, so to speak. But, it is also a perversity that has arisen and been addressed in another context: the land-use context. Using the evolution of zoning law as a guide, a takings-friendly solution to this "Hobson's choice" becomes visible: the imposition of uniform amortization provisions. The conceptual problem posed by old, coal-burning utilities in the context of air pollution regulation has proven highly analogous to the problem of nonconforming uses in the zoning context. Preexisting nonconforming uses in the land-use context could not be abolished outright without compensation due to the constitutional protection afforded property owners against unjust takings. In response to this problem, a pattern of land-use doctrine emerged that is remarkably similar to the evolution of air pollution regulation over the past thirty years. Namely, restrictions were put upon the ability of a nonconforming-use owner to make changes to her property. If the owner made any significant changes to the nonconforming use, the use would no longer be permitted to continue. Similarly, after the enactment of the NSR and PSD programs in the 1977 CAA Amendments, any "major modification" would render a grandfathered facility "good as new" for regulatory purposes. In both cases, these attempts to rein in old, nonconforming facilities proved insufficient. In the zoning context, however, the technique of amortization emerged as a way to eliminate nonconforming uses provided that the amortization period was reasonable. This technique was never incorporated into the air pollution context, and, in this Note, I contend that this omission was a mistake that should be remedied through immediate legislative action. While the specifics of an amortization program, which would replace the NSR and PSD programs in dealing with the electric utilities built prior to the original CAA, are beyond the scope of this Note, I highlight one important guideline in the establishment of "reasonable" amortization periods--the use of full-time baselines, which would mandate that BACT requirements be met in a few years. Also, because old plants have been afforded unforeseen economic advantages as a result of the two-tiered framework established thirty years ago, the "amortization compensation equation," a vein of judicial reasoning that emerged in the billboard context, has particular relevance. Although the view of amortization as compensation due to the monopolistic position afforded the owners of a nonconforming use has decreased in popularity in the context of aesthetic billboard regulation, the shift is a result of a highly contentious and questionable amendment to the Highway Beautification Act. If ever a situation merited the legislative resuscitation of the amortization compensation equation, the problem posed by grandfathered electric utilities seems the ideal scenario. In this way, through the careful incorporation of amortization provisions mandating the imposition of best available control technology for old sources, the thirty- to forty-year un-grandfathering erroneously imagined by the original framers of the 1970 Clean Air Act can at last become a plausible, effective, and long awaited reality.
A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?
112 Yale L.J. 1919 (2003) The regulation of predatory loans can be a tedious business. The whole topic redounds of such yawn-inducing terms as "single-premium credit insurance" and "negative amortization." Yet the human costs of predatory lending are no less real for all the financial jargon that masks them. Thousands of Americans, especially minorities and the elderly, have lost their homes due to sharp lending practices. The effective regulation of such abusive lending, while not a very sexy endeavor, could markedly improve the quality of life for some of the nation's most vulnerable people. This reality has led thirteen states and several major cities to undertake statutory and regulatory reform efforts in the past three years. The Federal Reserve Board (Fed), too, has attempted to rein in predatory lending through the recent promulgation of its revised standards under Regulation Z. This Comment will attempt to analyze the potential efficacy of the Fed's effort by examining a specific portion of the revised Regulation Z, namely, its prohibition of so-called loan "flipping." This rule forbids the refinancing of any "high-cost loan" within one year of its initiation, unless that refinancing is "in the borrower's interest." The prosecutorial discretion embedded within the new federal antiflipping provision represents a potential improvement over the previous generation of predatory lending regulations. This is because a discretionary standard better enables regulators and judges to end illegitimate mortgage refinancings, while still permitting others to go forward when warranted by individual circumstances. Such a result can improve both the justice and efficiency of the regulatory regime. Even so, like all other regulatory systems relying on prosecutorial discretion, also present is the opportunity for over- and underenforcement. In the case of the antiflipping provision, most of the worry has been that the standard will be overenforced and cause the market for legitimate subprime loans to dry up. This Comment argues that this fear is overstated and that the real worry is underenforcement.
Chevron Deference and Treaty Interpretation
112 Yale L.J. 1927 (2003) One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign affairs law has important implications for treaties, which play dual roles in the American constitutional system: Internationally, treaties represent sensitive political agreements with foreign nations having important implications for U.S. foreign policy. Domestically, treaties enacted pursuant to Article II become "Supreme law" on par with federal legislation. Thus, when interpreting treaties, domestic courts have sought to reconcile these two functions by defending the judicial prerogative to "say what the law is" while simultaneously affording executive treaty interpretations "'great weight.'" A recent article by Professor Curtis Bradley defends judicial deference to executive treaty interpretation by analogizing this practice to the Supreme Court's two-part test for deference to administrative agency interpretations established in Chevron U.S.A., Inc. v. Natural Resources Defense Council. Accepting that some judicial deference in this realm may be both appropriate and desirable, this Comment nevertheless challenges Chevron's adaptability to judicial treaty interpretation in light of prevailing constitutional and customary international law. In place of Bradley's Chevron paradigm, this Comment offers an alternative analogy from administrative law--Skidmore deference--as a superior paradigm for conceptualizing judicial deference to executive treaty interpretation.